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Vulavou v The State [2005] FJHC 398; HAA0133J.2005S (31 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0133 of 2005S

Between:

SENITIKI VULAVOU
Appellant

And:

THE STATE
Respondent

Hearing: 28th October 2005
Judgment: 31st October 2005

Counsel: Appellant in Person
Ms H. Tabete for State

JUDGMENT

The Appellant was charged as follows:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to Section 8(b) of the Dangerous Drugs Act (Amendment) Decree No. 4 of 1990 and Dangerous Drug Act (Amendment) Decree No. 1 of 1991.

Statement of Offence

SENITIKI VULAVOU on the 31^st day of July 2004 at Suva in the Central Division was found in possession of dangerous drugs namely 3122.1 grams of Indian hemp.

The charge was read to him on the 3^rd of August 2004. He asked to be given time to seek legal advice. On the 17^th of August 2004, he pleaded not guilty. He remained unrepresented. The matter was adjourned for hearing to the 15^th of September.

On that date the Appellant said he had applied for legal aid but had been told that he was not entitled to it. He asked for time to instruct a lawyer. There were two other mention dates. The Appellant failed to appear on the mention date and a bench warrant was issued. It was later cancelled because the Court accepted his explanation for his failure to appear. There were several other adjournments until the Appellant changed his plea on the 15^th of June 2005.

The facts were that on the 31^st of July 2004, Police Support Officer Kavaia was on duty at the Suva Market when he received information from another police officer that the Appellant was at the market and behaving suspiciously. PSO Kavaia searched the Appellant’s bag and found five parcels of dried leaves, suspected to be marijuana. The Appellant was arrested and taken to the Central Police Station. Under caution he refused to answer questions. The leaves were confirmed to be Indian hemp, by the Government Analyst.

These facts were admitted. The Appellant has 41 previous convictions, including several for drug related offences. In mitigation, he said that he was 37 years old, and lived at Tacirua village. He was a driver for Safeway Electronics, and was married with 5 children. He expressed remorse and asked for larceny.

Sentence was delivered on the 17^th of June 2005. After reviewing the Appellant’s previous convictions the learned Magistrate said that the maximum sentence available under the Dangerous Drugs Decree, for being in possession of more than 500 grams of Indian hemp, was 20 years imprisonment. The minimum was 5 years imprisonment. He sentenced him to 7 years imprisonment.

The Appellant’s appeal is in relation to conviction and sentence. In respect of his conviction, he says that his plea of guilty was equivocal, that the charge was defective in that the offence was not known in law. In relation to sentence, he says that the sentence is harsh and excessive.

The State concedes the appeal against conviction. Counsel submits that the Appellant was charged under the Dangerous Drugs Act as amended by decree, when the relevant provisions of the Act had been repealed and replaced by the Illicit Drugs Act 2004. The commencement date of the Act is the 9^th of July 2004. Section 39 of the Act provides for the repeal of parts of the Dangerous Drugs Act. Part II of the Act, and in particular section 5, provides for the unlawful possession of illicit drugs. The maximum sentence is life imprisonment and/or $1000 fine. The definition of illicit drugs includes Indian hemp, or cannabis.

The Appellant is alleged to have committed the offence in August 2004, one month after the commencement date of the Illicit Drugs Act.

The charge therefore does not exist in law. It follows that the guilty plea, conviction and sentence are invalid and must be quashed. The Appellant’s appeal against conviction succeeds.

Because of the seriousness of the alleged charge, it is in the interests of justice that the Appellant be retried. A retrial is ordered.

Nazhat Shameem
JUDGE

At Suva
31st October 2005